STAFFING GUEST BLOG -- MIKE JACKSON

Mike JacksonMike Jackson is an associate in the Cleveland office of Fisher & Phillips, where he practices in all areas of labor and employment law, primarily focusing on employment litigation.

Whether it's an organization of 20 or 200, today's employer must be ever-mindful that numerous federal and state laws impose on them a duty to investigate allegations of wrongdoing, misconduct, safety violations, or accidents. With administrative agencies like the EEOC, NLRB, and OSHA doubling their investigator ranks and stepping up enforcement actions in recent years, increased scrutiny has been placed on employer investigations and findings arising from these investigations.

Although the scope of each investigation will vary depending upon the allegations and number of parties involved, there are 10 fundamental actions every employer conducting a workplace investigation must take to ensure that it has conducted an effective investigation that not only complies with statutory requirements, but also that may be used defensively as a shield in litigation:

1. Identify all key allegations and relevant witnesses. After receiving the complaint, it is critical to prepare an agenda or outline for interviewing witnesses and, then, right away set up times to interview all relevant witnesses. In workplace investigations, it is too easy to overlook central issues and/or witnesses if interviews are conducted without careful focus.

2. Develop an “opening statement” when talking to employees and managers. Because many employees will be nervous and apprehensive in participating in workplace investigations, it is critical to lessen these fears in order to ensure a cooperative and truthful witness. At a minimum, an “opening statement” should:

• Disclose the nature of (or reason for) the interview;

• Inform either the employee or manager why he or she specifically is being interviewed;

• Remind the employee of the company's anti-retaliation policy;

• Encourage candid, frank discussion; and

• Remind employees that no conclusions will be reached until facts have been gathered

3. Listen carefully to the interviewee. Although it is important to focus on the central allegations and claims triggering the investigation, it is equally important to explore issues that come to light in the investigation, particularly if they appear to relate to the allegations or claims you are exploring.

4. Document, Document, Document. Take clear, concise notes at each interview to ensure an accurate record of the conversation and issues discussed.

5. Remain neutral. Nothing stops an investigation quicker or prevents candid disclosure than the perception of impartiality. It is critical that employers remain objective and neutral in talking with parties regardless of the particular interviewee's employment record or history.

6. Ask for specific examples when discussing the complainant's allegations. Do not accept the complainant's allegations at face value but, rather, ask them questions designed to elicit specific examples that you can explore with other witnesses.

7. Analyze the facts and reach a conclusion. Once you have concluded the investigation, you should review the information gathered shortly thereafter and, then, assess the validity of the complaining party's allegations and consult with legal counsel in determining whether the facts uncovered violate any laws.

8. Report back to the complaining party. At the conclusion of each investigation, it is critical that the complaining party be informed that:

• His or her allegations were/were not substantiated; and

• Corrective action was or will be taken (to the extent any violations were found)

9. Take appropriate corrective action, if necessary. The range of discipline could include any of the following:

a. Written warning

b. Suspension

c. Demotion

d. Placement on a performance improvement plan/corrective action plan

e. Termination

10. Consider other “lessons learned.” Employers should revise or re-consider any problematic policies or practices exposed by the investigation, particularly if these issues seem to be recurring.

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